Deceptive Marketing Practices: Exploring Legal Dimensions Of Surrogate Advertisements And Consumer Misleading

Update: 2023-12-01 03:39 GMT
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In India, surrogate advertising is predominantly employed in the tobacco and liquor sectors due to the prohibition of direct promotions for these products. To overcome this restriction, liquor and tobacco industries have devised surrogate ads as a strategic workaround. Rather than directly showcasing the banned items (alcohol or cigarettes), companies present them indirectly...

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In India, surrogate advertising is predominantly employed in the tobacco and liquor sectors due to the prohibition of direct promotions for these products. To overcome this restriction, liquor and tobacco industries have devised surrogate ads as a strategic workaround. Rather than directly showcasing the banned items (alcohol or cigarettes), companies present them indirectly by integrating them into advertisements for different products under the same brand name. This approach ensures that whenever the brand is mentioned, consumers associate it with its primary product.

Major brands such as Kingfisher and Wills rely on surrogate advertising to bring attention to their diverse product range. For example, Kingfisher has utilized its brand name to endorse a variety of products, including bottled water, soda, and calendars. The former Union Health Minister, Mr. Anbumani Ramadoss, once contested the name of the Bangalore Indian Premier League (IPL) cricket team, "Royal Challengers," alleging it was a clear surrogate advertisement for the liquor brand "Royal Challenge." However, the Supreme Court of India clarified that the team was named "Royal Challengers," not after the liquor brand, and humorously remarked that only those who consume such products would be influenced by such associations, implying that the name would not impact non-drinkers.”

“Merriam Webster defines a Surrogate as a 'substitute', And surrogate advertisements are just that. A surrogate advertisement can be defined as an advertisement that duplicates the brand image of one product to promote another product of the same brand. The surrogate or substitute could either resemble the original product or could be a different product altogether, but it is marketed under the established brand name of the original product. Surrogate advertisements are used to promote and advertise products of brands when the original product cannot be advertised on mass media. Some instances of surrogate advertisements are Bagpiper Soda, Cassettes and CDs, Royal Challenge Golf Accessories and Mineral Water, Imperial Blue Cassettes and CDs etc.”

Conditions for non-misleading and valid advertisement:

“An advertisement shall be considered to be valid and not misleading;

1. If it contains truthful and honest representation;

2. Does not mislead consumers by exaggerating the accuracy, scientific validity or practical usefulness or capability or performance or service of the goods or product.

3. Does not present rights conferred on consumers by any law as a distinctive feature of advertiser’s offer.

4. Does not suggest that the claims made in such advertisement are universally accepted if there is a significant division of informed or scientific opinion pertaining to such claims.

5. Does not mislead about the nature or extent of the risk to consumers’ personal security, or that of their family if they fail to purchase the advertised goods, product or service.

6. Ensures that the claims that have not been independently substantiated but are based merely on the content of a publication does not mislead consumers.”

Laws Governing Surrogate Advertisement’s In India

1. Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“COTPA”):

2. The Cable Television Networks (Regulation) Act, 1995 (“CTNA”):

3. The Advertising Standards Council of India (“ASCI”):

4. Framework Convention on Tobacco Control (FCTC)

“Surrogate advertisements are not only misleading, but also false and dishonest in many cases. This method is used by the corporates because the legislations that are in place as of now perform only a half-hearted job in controlling this menace. If the legislature and the government really want to get a death grip on this menace it should implement its intentions in a more spirited manner and it should be done without the customary loopholes. If the government really wants to tackle the problem, it should either ban the products completely and remove it from the market or make some provision which makes it practically impossible for the companies to use circuitous methods to make use of their brand names and make a mockery of the legislations. With surrogate advertising so widespread, this is the moment to tackle the problem head-on. Some of the measures that can be taken up are:

I) Making transparent laws banning surrogate advertisements for different products under a single brand name, by amending the Trademarks Act;

ii) Providing teeth to the Advertising Standards Council of India to enable it to take action against false and misleading advertisements, and keep a close vigil over clever evasion of the law, instead of just issuing notices and making the guilty mediums issue apology scrolls and advertisements;

iii) Establishing a national coordinating mechanism for effective implementation of international and national regulations and commitments is highly essential.

iv) Creating a consumer awareness programme to help people understand surrogate advertisements and the way they are being used; and

v) Requiring advertising agencies to have full knowledge of the products under the same brand for which they are promoting advertisements, and taking legal actions against those agencies which design surrogate advertisements.”

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